



f^ 



L/BRARY OF CONGRESS 




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THE POWKR AND 1)1 TV 01" COXffiKSS TO PROVIDE FOR THE COMMON 
DEl' EXCE A.M) THE SlL'l'liESSION OF THE HEUKIll ON. 

SPEECH 

RON. JNO. A. BTNGHA-iAr, OF OHIO, 

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lu the IIouso of Roprcsontatives, January 15, 1862. 



Mr. BINOriAM said : 

Mr. Si'K*KKi{ : I am lor tins ji>mi rcsoiuiion, 
whii'h orciors the ennctment of irbill to supply to 
■y I'or the cdmnion cip't-nco, bj l:»xa- 
■nd intlirect, $150,000,00(1 unniiHlly, 
I bnil Buch lef^islatioa as responsive to the living 
issno of tbe hour — the suppression of the nbel- 
lion whirh strikes iit the nation's life. It in, in 
mv juilfriiicnt, tlie liiity of the Ropr. sfntiitives of 
thf people to provide tlie ways and nieiins, and 
to declare by Uw the powe- which shall be cm- , 
ployed by the Kxecutive for the unconditional 
Kuppression of this ri-bellion, unparulliled in all 
the past, uhi'tlier you Poiisidcr the territory and 
resources whicli it commands, th*- numbers which 
it summons t> its standard of revolt, or tlie great 
interests and immortal hopes which ii stakes upon , 
the issue. 1 

That thi^ r<b?llion should be suppressed, all 
good iron ti).'ri'c ; that it can be suppressed only 1 
by the dr<ad arbitrament of battle is now no lon- 
ger an open tiuestion ; that it shall be suppressed i 
speedily and forever h the stern decree of that ! 
gnat people whose sublime uprising in defence 
of their nationality this day e.xcitcs the wonder 
and cliuUingej the niimi?ation of the world. ' 
This d crci> of the people can only.be executed 
by force, authorized, organized, and governed by 
law. To this end Congress should legislate, the 
Executive should net, and the mi^ihty legions of 
the pei pic should sfike wi h that terriblr power 
with wliiili Omnipotence clothes a nation's arm 
for the redress of wrong and the vindicatioa of I 
justice. ' 

The Republic, FJr, has the right to live and to 
!> its separate place among the Towers of 
h, until that right shall be forfeited by 
crime. The life of thi* Republic depends upon 
Just laws, their acknowledged supremacy, or their 
rigid enforcement. The rebellion organized and 
powerful over half the national domain, declares 
the Republic dismembered, its Constttution and 
laws repealed, and its atithority defied. This } 
rebi llion must be put down ; and you, sir, and 
all of us, mu?t by law provide for its suppression, ' 
or the Ro]iublic dies. The supremacy of its lawg 
is the breiilh of its life. The liepublic can no 
more live without its supreme law duly obeyed 
or duly enfored than can its citizens who com- 
pose it live without air. 

Mr.CA.Ml'BKM:. Mr. Speaker, will the gen- 1 
tleman from Ohio permit mc to make an inquiry? I 

Mr. mNGH.VM. Certainly. ' 



Mr. CAMPBELL. I admit tbe necessity of] 
making immediat<; and ade(juate provision to sus- 
tain the public credit and to carry on the war, 
but I would iii(|uire of the gentleman from (Jhio, 
who Id a distinguished mtiuber of the Committee 
on the. Judiciary, whether, in his opinion, it is not 
as necessary to provide by law for depriving tbe 
rebels of the "sinews of war ;' in other wordjs, to 
confiscate their propertv and free their slaves ; 
and I would respi-ctfully intjuire why the Judi- 
ciary Committee have not reported a practicul 
and unitbrm measure of that character? 

Mr. BIN(;HaM. I win answer my friend that, 
without censuring others, it is no (ault of mine 
that such a law is not already enacted. Of the 
right and duty of this House so to legislate I 
shall presently speak. 1 was saying when inter- 
rupted thiit ilie Republic could not live without 
its supreme law duly obeyed and duly enforced. 

What is the supreme law of this Republic un- 
der which, youngest born of the nations, it came 
to be, and only by the maintenance of which and 
the care of the Infinite it can continue to be ? 
Upon this question there is no room for doubt; 
it was answered by those great spirits whem 
Uod taught to found and to build tbe msjestic 
structure of our civil institutions. In yoar 
matchless Congtitntion they have declared : 

"Tills ConFlltntion nml tlio |;iw.s nrthornlted Stnteg which 
.'^luil !)•• mull' III pill -II. ill. i> thereof, and all tirutiea niiule 
or wliili ."tiall I).- 1 I the aiilliorilv of Iho UuHiSd 

.^^tiiltH, .'-lia:i lie till .iw iiflin- liiod." 

These shall be tbe lupreme law of tbe land, 
"anything in the constitution and laws of any 
State to the contrary notwithstandin); ;' they 
shall be supreme in every State of the Union, in 
the Carolinaa as well m in distant (.»regon ; they 
shall be supreme ovet every officer, civil and 
military, in every department of Government, 
State and national ; supreme ove/ every citizen 
and every strangur within your gates ; supreme 
over every ship bearing your (lag in every sea be- 
neath the whole heavens ; supreme over your 
army and navy and the mighty legions ol the 
people themselves when they rush to the rescue 
of a violated constitution. To-day this supremo 
law fs defied and cloven down by the red arm of 
rebellion in eleven States, expending from the 
Potomac to the Rio (irande. To lift up over all 
that vast region tbe fallen ensign of the Repub- 
lic, and reassert and enforce its supreme law, is 
tbe first duty and fixed purpose of the people ; 
and allow me to add, the first dutj, as I trust it 



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is the fiied purpose, of the people's Representa- 
tives, la the discharge of this p'atriotic duty, in 
the execution of this sublime purpose of saving a 
nation's life by enforcing a nation's laws, what 
are the rights, powers, and duties of the Govern- 
ment of the United States ? 

Sir, answering this question, now upon ^very 
tongue, standiJig upon the Constitution, not dar- 
ing to look nor desiring to look beyond its grants 
of power or its limitations of power, I affirm that 
the Government of the United States may by 
law authorize and by force do against these trai- 
tors whatever, in consonance with natural jus- 
tice, may be necessary to the speedy and complete 
suppression of this rebellion. 

I repeat it, sir, that whatever is necessary to be 
done for the common defence and the maintenance 
of the nation's life, may be done, and is required 
to be done by the very terms of the Constitution. 
And yet, sir, with a " sickly sentimentality," we 
have been admonished upon this floor and else- 
where that iiecessity is the plea of tryants. Do 
not gentlemen know that it is onlj^ by wrongfully 
arrogating and assuming the rightful powers of 
good government, that tyrants rule ? Tyrants en- 
force their assumed ^.uihority and unrighteous 
decrees by arms ; does it thence rgsult that a just 
and benehcent Government wrongfully and wick- 
edly assailed and threatened with overthrow, 
may not, if need be, protect and preserve its 
own existence by arms? Why, sir, it is an ac- 
cepted maxim of the common law of nations — 
the growth of centuries, the gathered wisdom of 
a thousand years — that whatever is necessary to 
the preservation of a State is just, with this lim- 
itation — that what is inherently unjust is. never 
necessary. When a nation is driven to the asser- 
tion of its rifjhts by war, the end of which is to 
obtain justice by force, when not obtainable by 
any other method, it has the right to do against 
the enemy whatever it finds necessary for the 
attainment of that end. " Right goes hand in 
hand with necessity and the exigencies of the 
case, but never exceeds them." That is the ac- 
cepted law of the civilized world, recognised in 
the courts of every civilized State, and uttered 
by all the great writer? on international law. 

War, then, is the necessary assertion of a na- 
tion's rights by force, authorized by law; or the 
wrongful invasion of a nation's rights by force, 
and without authority of law. The one is just, 
the other unjust. War may be international or 
civil, foreign or domestic; that is, it may be 
waged against one nation by another separate 
and independe^nt nation, or war may be wrong- 
fully levied by citizens of a State against their 
own Government. This last is the war which 
to-day shakes the Republic, and of which the 
Constitution speaks when it declares " that trea- 
son against the United States shall consist only 
in levying war against them, or in adhering to 
their enemies, giving them aid and comfort." 
In the suppression of this civil war — this trea- 
sonable war, waged by rebel citizens against the 
Constitution and laws— the Government, by law, 
may authorize, and by force do not only all that 
is sanctioned by the law of nations in cases of 
international conflict, but it may rightfullv and 



1 * '^ ' \ 

constitutionally do more ; it may inflict death 
upon conviction, in accordance with its statute, 
upon every person owing allegiance to it who 
has levied or shall levy this unnatural war 
against it, or who has adhered or shall adhere to 
these rebels, giving them aid and comfort, either 
within the United States or elsewhere. I cannot 
and do not agree with what I have heard inti- 
mated here — that because Great Britain has pro- 
claimed herself neutral as between the United 
States and these insurgents, that the treason of 
the insurgents is the-eby legalized ; that your 
statute against treason is thereby repealed ; or 
that these traitors are thereby clothed with the 
rights or entitled to the immunities of the subjects 
of a belligerent but sovereign and independent 
State. No, sir; all the foreign Powers on God's 
earth cannot by {)roclamations of neutrality and 
recognition of these insurgents as belligerents in- 
vest them with sovereignty or absolve them from 
the dread penalty of their crime. To ? .ppress this 
rebellion and punish this treason, "ivbich has for 
Its object the overthrow of the Constitution and 
laws,, is the right of the Government, resting 
upon and declared by the express provisions of 
the Constitution. The President shall "take 
care tha!t the laws be faithfully executed," and 
shall " solemnly swear " that he " will faith- 
fully execute the office of President of the United 
States," and " to the best of his vbility preserve, 
protect, and defend the Constitution." The duty 
enjoined upon the President to execute the laws 
of the Union — the supreme law of the land — 
necessarily implies, inasmuch as tl^ Constitution 
does not execute itself, that he shall be invested 
by the law-making power with the authority 
needful to that end. 

What are the law-making powers of the Gov- 
ernment, and what department of the Govern- 
ment is authorized to exercise them? Look 
again to the Constitution, the great charter of the 
nation's rights — the written expression of the 
people's will. That instrument provides thai 
" all legislative powers herein granted, shall be 
vested in a Congress of the United States, which 
shall consist of a Senate and House of Represent- 
atives." Of the legislative powers therein grant- 
ed, I deem it only necessary to my present pui^- 
pose to enumerate the following: 

" Tlio Congress shall have power to levy and collect tases, 
duties, imposts, add excises, to pay the dobia and provide 
for th; COMMON DEfBXCE and gexbrai welfabk ol' the Unitod 
Slates : 

"To borrow and coin money, and regulate commerce:' 

" To constitute tribunals inferior to the S\ipreme Court : 

" To defnie and punish piracies and felonies committed on 
the high seas, and offences against the law of nations : 

" To declare war, grant letters of marque and reprisal, and 
make rules concerning captures by land and water : 

" To raise and suii]iorl armies : 

" To v^roviile an<l niaiutaiu a navy : 

" To make rules for the government and regulation of tho 
land and-naval forces : 

"To provide Ibr calling forth the militia to cxecnto tho 
laws of the Union, suppress insurrections, and repel in- 
vasions : , 

" To provide for organizing, arming, and disciplining tho 
militia, and for governing such part of them as may bo cm- 
ployed' in the si-rvico of the United States : 

""To declare the luniisliment of treason : 

" To make all laws which shall "be necessary and proper 
for carrviHg into execution the fon^going powers and all 
other powers vested by this Constitution in the Government 



or the UiilUJ StatoB, or in any JcpiUtinent or oflDcer U)cro- 

of." 

Thus have the people by their CoostUution 
iulrubteil to Congress, iu order to provide by 
latv lor "the cuiitiuon defence,'' these hiiiliest 
powers of sovere'guty, in the exercise of whicli 
are involved the issues of liberty aud property, 
of liCe aud death. Surrounded by this wild 
etorni of rebellion, in these clear grnDtj of power 
to provide by l;iw fully and completely, not onlv 
iot its suppression by force, but for ibj til pun- 
isnnifut, I see that the fearledB uieu who trained 
that instrument were taught what is lo essen- 
tial io all b> man klTa'rs, " the righteousness 
that there is in right understauding." With the 
far-reachinft vImou of the soer, they perceived 
clearly iind provided tully for every posflible na- 
tional esigeucy. The c( njprebensive wisdom of 
the Constitution stamps its authors as possess- 
ing in full measure that highest quality of man 
— the lar^e discourse which looks before and 
aiter. I neither forget nor seek to conceal tit 
fact that there are special guarantees to States 
and persons io the Constitution, aod 8p»«ial lim- 
itations upon the powers of Congress, and that 
t( rity of the (iovernmeul is limited to its 

(.: 1 powers, express or implied, lint, sir, 

a careful ex:uiinaiiou of that wondrous instru- 
ment in th> iight of its coutemporaueous con- 
BtructioQ will convince any.one that the great 
powers conferred by the Constitution upon Con- 
gress, " to provide lor the common defence," arc 
only limited in the extent of their exercise by 
the public necessity and the eternal rules of 
right aud justice, obi gatory alike upon men 
and nations. 

Sir, in all that I have said, or may sny, touch- 
ing your unlimited power to legislate •* for tlie 
common defence," I do not mean to ignore that 
highest law, whose voice is the harmonv of the 
world, and whose seat is the toeom of CJod — the 
law, not of material, but of huiaau life; that 
life which is more than breath, or the (|iii('k 
round of blood ; that life which is a great spirit 
and a busy heart, which is thought incarnate, 
mind prccipiuted, and which we di-'Signate by 
the sirotig word, man — by whom is made the 
grtut liviii;; World of human thought and humaii 
feeling ami human action. Nor wlien 1 8j)eak 
of your uulimited power to legislate for ihe gene- 
ral welfare, do I mean that you may rightfully 
legislate to the hurt of the general welfare, or 
in wanton disregard of those rights of human 
nature, lo protect which all good government is 
oriained. I admit, sir, that ciiil government, 
with all its complex machinery of civil polity, is 
bui a means tor thv atlaiument of a more im- 
portant cud — the protection of individual man, 
the devslopment of his deathless fticulties,t)l his 
generous atfections, of the immortal sentiments, 
hopes, and aspirations of his being. 

But, sir, it is a part of the essential economy 
of good guverumeut, thst individual intertsts 
and iadividual rights must subserve, at what- 
ever cost, tlie public good. No m<in lives lor 
bimaelt aloiu-, but each lor all. Some must die 
that the State may live ; individuals are but for 
to-day ; the Cummoawealth is fur all time. 



I reaflirm ray proposition that you are intrusted 
by the people with the unlimited sovereign power 
to make all-laws just and needful "tor the com- 
mon defence." What limitation is there but ihe 
public nev efcaity upon your power to lay and col- 
lect taxes iu the manner prescribed, to contract 
debts and borrow money, to declare war, raise 
arm1«s and navies, and make rules for their gov- 
ernment? The limitations of the Constitutioa 
may bo cited : 

" No person sli.tll bo <1cprlvcilftrUfo,ltbort7,or property, 

but Oy 'luo priHeM uf Liw." 

Nor shall private property be taken " for |«ub- 
lic use without just compensation.' 

•• In nM rritn.llfi! t .r. i. . int >> >! .^ t)ii. ;i(>-n^.-.l •.)■•>'' i.iil.iv t),.j 

r f 

I;. ' -,11 

cuiiiliiiltcnl. " 

When, to provide for the common defence, you 
levy a tax, as recommended by this resolution, 
upon the private jttO[)eriy of the citizen, aud in 
default of its payment distrain, sell, and tran.sfer 
his property to the stranger, not by the process 
of your courts, but by the summ.iry action of 
assessors and collectors, you take privaio prop- 
erly tor public use by due process of law, but 
without compensation. Why is this? Because 
it is necessary for thu general welfare ; because 
the safety of the Ilepublic is the supreme law ; 
because every citizen, by the very constitution 
of Government, holds his properly aud life iu 
trust for the common defence. When you de- 
clare war, aud raise armies and navies, and cuU 
out aud organize the militia, and make rules 
aud articles (or their government, aud thereby 
sut ject the (itizen to the trials of the camp, to 
the destruction of the pestilence which walketh 
in darkness and wusleth at noonday, to the 
slaughter ot battle, aud the restraints of military 
di&cipliue, and the death penalties of a court- 
martial, you deprive him of life aud liberty by 
due process of law, and coademu and puuish 
b:m as a criminal without a "trial by an impar- 
tial jury of the Stale and district." When, by 
your prize statutes, you provide, as you have 
proviiied, fur the capture and sale ot prtiuu 
proptrti/ for public use, you take private property 
t»y due process of law, but wlllioul any compen- 
sation. So, also, when by st.itu^u you proviUo 
for the seizure aud forfeiture of goods imported 
in fraud of your revenue laws, aud pay the pro» 
ceed» thereof into the Treasury, you take private 
properly for public use by due process of law, 
but without comper.sation. In siiort, sir, that 
expression of the Constitution, due process of 
law, means only the Uiu- o/ ih< land. 

Rnough has been said to show that these 
great grants of power lo be exercised lor the 
c^imou defence are vested in the National 
n^islature wiihoui any special limitation. But 
le^'t some ijuestiou might be maue whether the 
people had given the power to provide by law 
fo.- laying the life and liberty and property of 
the citizen under contribution, when the com- 
mon peril and the common defence made it ne- 
cessary, they added the comprehensive grant — 

'OnipO'csa shall tiave power to make all lawn xBcvAMir 
aiid raoi-BK' • • • • "for carrying IlPj 



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execution all powers vested by thfs Constitution in the Gov- 
ernment of the United States, or in any department or offl- 
cw thereof." 

What room is tbere for doubt or equivocation 
here? First, the legislative department, Con- 
gress, shall have power to lay and collect taxes 
and provide for the common defence of the 
United States ; to make war, raise armies and 
navies, and call out the militia to suppress in- 
surrection and repel invasion, and to make laws 
for their government; next, the executive depart- 
njent, the President, shall take care that the 
laws be faithfully executed ; A,nd, finally, Con- 
gress shall have power to make all laws neces- 
sary AND PROPER for Carrying these powers, thus 
granted to the Legislature and the Executive, 
into execution. What words could be plainer, 
or more comprehensive? Congress shall have 
power to make all laws necessary and proper for 
carrying into execution all the powers granted 
to the Government of the IJniied States, or to 
any department or officer wereof. The words 
"necessary and proper" are here used in their 
'most general and unlimited sense. Congress is 
the sole judge of what legislation is "necessary 
and proper " for the common defence, the sup- 
pression of insurrection, the repelling of invasion, 
and the defence of the Constitution. 

The word necessary, as used, is not limited 
by the additional word ^^proper" but enlarged 
thereby. 

" If the word necessary were used in the 'strict, rigorous 
eense, it would be ;ui extraordinary dcpartnrL" from tlie usual 
course of the humau miiui, as exhibited in solemn instru- 
inepts, to add another vvoril the only possible efleet of which 
is to qualify that strict aud rigorous meaniug,and to presunt 
(;learly the idea of a choice of means iu the'course of legisla- 
tion. If no means are to be resorted to but such as are in- 
dispenscUily necessary, there can be neither sense nor utiUty 
in adding the other word ' proper ; ' for the indispensalle ne- 
cessity would shut out\ from view all consideration of the 
^rf*prie<r/ of the means.'' — 3 Story's Cvmnientaries, sec. 122. 

The character of the clause forbids its interpre- 
tation as a restriction on the powers of Congress. 
It is placed among the express grants of power, 
and not among the express limitations of power. 
It is inconceivable that the framers of the Con- 
.stitution should have disguised a restriction upon 
the powers of Congress under the form of a gi-ant 
of power. (McCuUough vs. Maryland, 4 Whea- 
ton, 420.) That the word is used without any 
limitation, deliberately and intentionally, is ap- 
parent from the fact that when intended to limit 
the same word "necessary" employed in the tenth 
section of the first article of the Constitution, the 
framers were careful to prefix a word of liipita- 
tion, as follows : 

" No State shall, without the consent of Congress, laj' any 
imposts or dntics on imports or exports, e.xcept what may 
bo ABSOLUi-ELY NiiCK-ss.Mtv for exemilnig its inspection laws." 

If any such restriction as what is absoluicly 
uecessary, or indifpcmabl// necessary, had h^m 
intended in this general grant of power to C^H- 
gress, such word of limitation would have been 
used. 

"When the Constitut4,on was upon its deliver- 
ance before the people," says Justice Story, ''no 
one, in or out of the Sta,te conventions, ever 
dreamed of or suggested" that this clause "con- 
tained a restriction of power. The whole argu- 
ment on each side of attack and defchce gij'.y.e it 



the positive form of an express power." Away, 
then, with that morbid, carping spirit of fake 
construction and lurking treason which wouM 
strip the noblest structure of human government 
ever devised by man of the lawful m^ans of its 
own defence and preservation, and make it a de- 
lusive phantom of sovereignty; a splendid biu- 
ble, the sport of every traitor I Whateve» legis- 
lation, theii, is necessary for the common defence, 
and to suppress insurrection, and secure the 
fiithful execution of the laws, and is not int^n- 
sistent with the humane spirit and declared ob- 
ject of the Constitution, it is the right and duty 
of Congress to enact, that the Government may 
live, and that the supremacy of the Constitution 
may be maintained in accordance with the law 
of the land. 

I pray gentlemen not to mistake me as intima- 
ting that the condition of war confers upon Con- 
gress any new powers of legislation, but only as 
claiming that the condition of war makes the 
occasion for the exercise of the powers expressly 
granted "for the common defence." In my judg- 
ment, no wiser or truer word was ever uttered 
on this floor than the declaration of the "old 
man eloquent" — John Quincy Adams — when he 
said : 

" There are two classes of powers vested by the Con.<!titu- 
tion of the United States in their Congress and txecutive 
Government ; the powers to be exercised in time of peaco 
and the powers incident to war. That the jjowcrs of peace 
are limited by the provisions within the body of the Consti- 
tution itself, but the powers of war are limited aud regulated 
only by the laws and usages of nations, aud are subject to 
no other limitation." 

'To the same point I cite the opinion of that 
illustrious jurist and upright man who, in the 
purer and better days of the Republic, siied the 
light of his luminous intellect upon your judicial 
decisions, and tbe construction of your Constitu- 
tion. 

Says Chief Justice Marshall : 

" That war gives to the sovereign the full right to t.iko the 
persons and CDuliscate Ihis properly of the enemy wh^recei' 
fintnd is conceded." 

But that the declaration of war does not of ita 
own for>'.e authorize the seizure and condemna- 
tion of the enemy's property, he says — 

'( Is fairly deducible from the enumeration of powers 
which accompanies Itiat of declaring war." * * * * 
" Congress shall have ])ower " * * * * "to 
grant letters of marque and reprisal, and make rules con- 
cerning captures by laud and water. It wo\dd be restrain- 
iug tins clausi^ within narrower Hunts than the words thcnv- 
selves import, to say that the power to uiai<i> rules eoncern- 
hig cai)lures on land and water is to be conllned to captiu-es 
extra-territorial. What shall be done with enemy property 
in our country " * * « * n jg a question of 
policy proper for the consideration of a department which 
can mollify it at wiix, It is proper for the consiileration of 
the Legislature, not of the Executive or Judiciary." — 
iiiuum vs. United States, 8 Criinch, 122 — 128. 

No' formal declaration of war is necpssa'-y to 
the exercise by Congress of these war powers of 
legislation; it is tnough if actual hostilities 
exist. (Talbot vx. Seaman, 1 Cranch, 28 ; Bos 
w. TiDJey, 4 Dall., 37.) 

Nothing, sir, m irks more clearly the difl'erence 
between our Constitution and the constitutions 
of monarchy than this ; that under the Constitu- 
tion of the United States the power to declare 
war, and all other powers esiential and incident 



to a state of wnr, are by the people intrusted to 
. tlie national* Lt- (^idlature. The?o powers of 
Bovereifrnty ftre, by the constitutions of mon- 
HTc'liy, plncpil untiiT the discretion of the Trown. 
Sir, to wliHtrvt-r depHrlincnt of (ioviTniM"nt 
1'ii- ureiit iviwer of w;ir \a by theconsiitulioii of 
iSt lit 9 coniniiltod, in whutevcr hands it luay ho 
lodged, it is Rlwnyj und mcessurily unlimited 
nnd unrestricted hy the fundanientul law. Kven 
ill Hri)rl iiid, where, more than in any otiier (lov- 
et ive our own, the liberiifs of the p«-ople 

h n f/uarded egaiiigl ( xcf«5i\ e auiiiuiily 

aud preroga'ive, the fact stands admitted »^d 
unquestioned to this hour, that iho war powers 
of the (loveriiment, which involve the peace, 
tb ' lives of the people, are unre- 

fci. ited. It i:i the pride and housl 

of that people that by the ^reat revoliiiion of 
lOSH, resultinR in the eleyation of the Prince of 
Orange to the throne, and the restrictions upon 
the ji .13 of the I'rown, by the fjreal L>ec- 

laralii , its, the liberties of the ; eo;de were 

made secure. And yet, sir, by thai Declaration 
of Kightd it ia declared : 

•' Tti.it rii.'in? or '-pojilnjr a utamling nrmy within Iho 
k ■ '-^jUnUsa wi.k tlie cuimnt </ Parlia- 

III 

Never did the pulse oflib»rfy bpat in->re sfronp;- 
ly in the breasts of the Enplish people than in 
that great revolution ; never were they more 
jealous of thtir rights, or more stroo;ily resolved 
or better prepared than then to guard their lib- 
_ erty* agaiiis arbitrary invasion. And yet the 
very necessity of thinps compelled them to ad- 
mit that the power for the comunn defence could 
11' " cd, but must be limited only by th^ 

pi y. Therefore they committed the 

tiuinority of maintaiuinp standing armies, even 
in time of peace, to the unliniittd discretion of 
Parliament. Ku the fathers of the Ilepublic, 
when they came ' 'uct a Con:Jlituiii)ii f(fr 

the fabric of At ( iipire, hud the wisdom 

to foresee, and the courage to declare, that there 
could'be no Safety for the Stale, and no security 
for the liberties of the people, unless a power "for 
the common defence '' was, without lestriction, 
committed to some department of the Govern- 
ment. They wi.^ily cummitied this unlimited 
power to Congress, the department neareit to the 
people, and most directly responsible to the 
people. That this power was conlerred without 
constitutional restriction or limitation, I ask the 
attention of the House to iheir witness, who 
spejik to us from beyoud the grave. 

Says Hamilton, who contributed by his great 
intellect as much as any other to the formation 
aud adoption of the Constitution : 



tn I. . : 

T!. 



on- 



.(■li' as Ihry art' unlviTP»l : 
■ I (■! liif rtii/ ; ii<' I" i! "im 
; (111- mit 1 

ll IH to \)V ,. — 



J 

II 

1* 

a: 
1 


|..,„..: , 


.hi 


■i |.^ IllV ' 


t!iu 


|i<i\Vll 


IMi 


kn.viiK 1 







"The niilhorlllrg OBsontiat to ilio caro or tho common do 



C.\t«^lll .1 


»i 111,- 


Tlirt rli . 


wllicli 




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■11 tbo 



' liini of till- sumi- 

I " ■■■ " "• ■- ■■•'• ■''■ 

Itiii.,:' • «• ♦ • ., 

lii/ci'ssary consfqaojice, ihiU thai ; ■>■ 

of tUul authority which is to tiruviiic fur Uiv Ul-(vuu« aud )iro- 



I 
li'liiri- 



tl 

fri'lll ^. 
oiitfht I" 

t'tUclMlul, Su. '^, j,l) l„, '^{j. 

Says Madisoo, Bouietimes called the father of 
the Const itutioD : 



.sill 

• .i>vrlhi- 
vo. Ih 

pllig llt-< is Shi SH>JiK\ t 

■ r ; It i» Uiviilvi'd III 
.in 

' I. il> « lu .i:^ 111 V* AK ? 

im ami coiiclustvc aa 

., :,I,V Iil.M,. W.tU 

. .) 
■ i.f. 
* *• " ll W »l VUIU ll> o\>i>u»o 

coii.stitiitiiiuni bnrrlcrs to tho Impulse uf HGir-prt-siTvaliua." 
fhl^niUst, No. 41 , (i. 17^ . 

So spake Hamilton and Madison when the Con- 
stitution was on trial before the people. 
I adopt the strong words of Mardhnil : 

" TIk' li'iviTiitiiciit, wliirli luis a riirlit tii do an art, aud 
ll 1 lli:it :irt, niUHl, ac- 

i ' 111 Id ml<"Cl Iho 

nil Ml.-. .»/' ' lin/l; I •• ,-. Ji'.iiy.iM<. , .i I'l iKMlllll, 40U. 

The duty to provide for the "common de- 
fence," and to that end to lay taxes, borrow and 
coin money, contract d-ibts, raise erniies and 
navies, and make laws for their government, is 
imposed upon Congress : and therefore reason 
declares, and the Constitution provides, that Con- 
gress may pass all laws necessary to the faith- 
ful discharge of that duty. As there is no e.x- 
press limitation in the Constitution of any legis- 
lation legitimate or needful to national defence, 
either to suppress i"Surrection or repel invasion, 
it follows that Congress may in the premises 
authorize to be doue whatever in self-defence 
against violence and war free and inilopmdent 
nations may of right do. What nations may 
rightfully do in the prosecution of a just war in 
defence of their rights, or in vindication of their 
lawlul authority, is dearly defined in the laws 
of nations, and audibly at:e8ted by th( voice of 
the civilized world. It is the established law 
of nations that neckssity is the measure of vio- 
lence in war, and hiiimtnity its tempering spirit. 

Frum>all this it must be apparent that while 
unnecessary or wan'on cruelty to the public 
enemy is forbidden by the law of tiations, as well 
also by tho Constitution, all else essential, how- 
ever destructive of their lires and jiroperty, is 
jiiftili;il)le — a right and a duty. If these rebels 
in riiis against the Constitution and laws were 
alien, not citizen enemies, the Gov(rnmefit of 
the United States, by authority of Congress, 
oould visit upon them all those dread penalties 
of war, the <le truction of their liVes, aud the 
conti-calion of their prop<rty, so far as neceitary 
to the vindicKiitin of the nation's rights. That 
ibey are citizen enemies does not relieve them 
from such penalties, or in any wise mitigate their 
guilt. But what is forbidden by the law of na- 
tions towards alien enemies waging war ^galnat 



^ 



6 



us by the authority of their sovereign, is ex- 
pressly allowed by the Constitution of our coun- 
try towards these rebels. Every one of them 
taken in the overt act of rebellion, inasmuch as 
he is a citizen of the United States, and owes 
tiUegiance to the Government of the United Stales, 
may be treated as a traitor, and, upon trial and 
conviction, may justly be subjected to the pun- 
ishment prescribed by the statute upon those 
guilty of the crime of treason, and be subject?d 
to such other penalties for his rebellion as may 
be prescribed by law. No State in the Union 
can legalize trtason or absolve any of its cit- 
izens irom his allegiance to the Federal Govern- 
ment. , • 1 » f 
The Government is invested with the ngbt ot 
self-defence and sell-preservation, and, to that 
end, with the powt?r to provide by law fo" the 
maintenance of its authority by force agnust all 
conspiracies, however sanctioned by State stat- 
utes, or State constitutions, or State ordinances 
of secession. ^ , r^ 

Such are the rights and powers of the Gov- 
ernment. What are its duties, and especially 
what is the duty in 'this hour of national peril 
of the legislative department of the Govern- 
ment ? Manifestly, si;, it is the duty of Con- 
. grass, it is our duty as Representatives ot the 
people, to pass all laws necessary for the sup- 
pression of this rebellion. Judging from some 
indications which I have seen, 1 fear there are 
those who deem legislation unnecessary, and ac- 
tive military operations unnecessary, to the sup- 
pression of this rebellion^ who thiuk that diplo- 
macy and reason will ultimately conquer a peace. 
Reason is strong ; but reason uttered by legal 
authority, and supported by legalized force, is 
stronger lor the suppression of wrong. 

Is it not the duty of the legislative department 
to provide by law at once for the employment 
of ail justifiable forca against the persons and 
property of these rebels, to the end not merely 
ihat the avenging arm of a a insulted people may 
fall upon them, but that the nation may live, that 
justice may be esttbUshed, that domestic tran- 
quility may be rcstond, that the general welfare 
may be promoted, that personal security and the 
blessings of liberty may" be forever insured. For 
these ends the C usiiiution was ordained by the 
people ; not witi-out sutfering and martyrdom 
and the sacrifice of blood. Let not these ends 
fail of realization by any act of ours. The sa- 
cred trust of providing for the common defence 
ij in our hands ; let us not fail, to far as ii^us 
lies, to execute it. 

What are the laws already enacted for the 
common defence— do they provide all that is ne- 
cessary ? This is an important question. It 
should be tally answered. The people demand 
that all needful laws shall be enacted and eu- 
lorced. 

What are the laws on your statute-book for 
the common defence? You have a statute de- 
fiiiiug the punishmentof treason; a statute au- 
thorizing the organiza'.ion of an army and 
navy ; a statute authorizing the enlistment for 
the suppression ot this rebellion of live hun- 
dred thousand volunteers; a statute author-, 
izing the President to call out and organ- 
}z,6 tbe iftilitiaj a statuta for the govern- 

\ 



-'T 



ment of all these forced ; and for the organiza- 
tion of military courts summarily to try and 
punich ail conceivable offences which any of 
them may commit. You have also authorized 
loans to the amount of $250,000,000, and have 
provided for the capture and condemnation to 
the public use of the ehemy's property taken on 
the hi^h seas, and of such public stores of the 
enemy" as may be taken in his camps, towns, 
forts, or magazines ; and by your late statute— 
which I cannot agree with my friend from In- 
diana [Mr. Julian] was a legislative blunder-- 
you have provided for the confiscation of all 
property used by its owner's consent in aid of 
this rebellion, and for the liberation of all slaves 
used in the military service of the rebels by con- 
sent of their masters. You have also appro- 
priated $500,000,000 to support your army and 
navy, but not tbe means to supply the money. 
That, sir, is about the sum total of your legisla- 
tion for the suppression of this gigantic rebel- 
lion. ^ • tU 

Is not further legislation needful to sustain the 
credit and supply the Treasury of the country I 
In my judgment, Congress should not only au- 
thorize a limited amount of demand Treasury 
notes, as contemplated by one of your bills re- 
ported by the painstaking and laborious Commit- 
tee of Wajs and Means, but should also author- 
ize an additional lo.m fully equal to the public 
wants, and provide for the prompt pajm^nt ot 
the interest upon its loan, and the. redemption 
of its demand and matured notes, by laying di- 
rect and indirect taxes, -as recommended by thia" 
resolution, fully adequate to that end. But 1 
•submit that, after we shall have thus legislated, 
we should go further. We should by law pro- 
vide for the confiscatior. to public use and to tho 
support of the Governm^-.^t, of all the property of 
all who shall, after your enactment, engage m 
this rebellion, their aidors and abettors. 1 do 
not stop to further argue the constitutional pow- 
er of Congress so to legislate, for on t^i at ques- 
tion a m^uority of this House are concluded by 
the enactment of the confiscation act of last ses- 
sion Why should not this legislation be ex- 
tended so as to authorize the seizure and confis- 
cation to the public use of all the property, real 
and personal, moneys, goods, stocks, credits, and 
effects of these rebel enemies, their aiders and 
abettors, wherever found, who shall Persist in 
the rebellion? This property, retained by the 
enemy is an element of strength. ^\ hy should 
not the $300,000,000 worth of cotton, corn, rice, 
sugar, and tobacco, now possessed by the enemy, 
and to them a means of subsistence and a basis 
of credit, be declared forfeited by law, and sub- 
ject to seizure and confiscation in your courts 
to the public use? Why should not the fer ile 
land, of the enemy, as fast as they are wrested 
from them by our arms, be by law subjected to 
the r cupancy of loyal citizens, that by honest 
culture they may be made to yield their annual 
tribute to the national Treasury ? And above 
all, sir, why should not the four millions of slaved 
held by these rebels, and by whose unpaid toil 
this rebellion waged by a half million of traitors 
in arms is sustained, be by a law of Congress de- 
Glared freemen, and forever released from their 
unwilling servitude ? 



» '. < ^) <i^",. • Vi/. '^'-^siii^-^' 



, ^ i irrj M iy -vi|p, 



The loyal citizens npon the snmmons of the I 
' President, and by authority of your law, rushed 
six huudrcd thousand strong; to the roscuo of the 
(Government and iheauppresision of this rpbellion. I 
Resolved upon this patriotic purpose, thpy stand 1 
in arms to-day from the shores of the Dclawure 
to the shores of the Mississippi ; in Maryland and 
Virginia ; in the Carolinaa and Kentucky ; in 
Missouri and Florida. These brave men are 
remly, ay, ready to lay down theft livea like the 
immortal heroi.a at Tin inopyhu in obedience to 
the laws. I 

8ir, if by a legislative act, forfeiting all proper- | 
ty and liberating all slaves of these rebels, their | 
ni'l'TS and abettors, you can diminish the bur- 
dens of the loyal people, strengthen your arms, 
and weaken the enemy, then is such lezislation 
necessary and an imperative duly. Upon my 
oath I dare not withliold my assent from such 
' n. By no a«t of mine can I consent that 

ill be any unnecessiiry burdens imposed 
upon the loyal citizen, or any unnecessary sacri- 
lice of tbeir lives in this struggle. I know that 
the loyal ami good are ready to give all their sub- 
stance to the support of the^cau^e of the Govern- 
ment. I know thai your citizen soldiers are ready 
to give up life for their country. 1 know that 
■ those who bade them go, and invoked (Jod'a 
blessing upon tlJcir going, and await with trem- 
1 'iaii jolicitude their triumph and honorable re- 
I'rn, will submit, if need be, without a murmtirj 

that greatest of all sacrifice, which will to 
4iem forever break the charmed circle of home, 
and forever change to them the beauty of earth 
and the imi^ery of heaven. If by enacting such 
a law you can soften the bunlens of the people, 
or save to any extent the i)recious lives of your 
soldiers, every man here, 1 trust, would be for it. 

I propose the confiscation of enemy property 
by condemnation in your courts, and its forcible 
seizure by arms. What constitutional restraint 
prevents it ? Does someone say, "no bill of at- 
tainder shall be passed ?" I agree to that ; I pro- 
pose no bill of attainder. I am no advocate of 
that "trauacendenl j)Ower of Par'iiam-'nt," of 
which Coke speaks, and by whir h, without judi- 
cial tritil, a man may bo ntta nted even after he 
is dead. Does 'Ome one cite the limitation of the 
Constitution upon your power to punish treason ? 
I agree that by that limitation your power to 
punish this great crime is limited to the life of 
the offender, and that you cannot, by you;- stat- 
ute, attaint t' e blood of his cfiildren. I propose, 
sir, to deal only with living traitors ; to confis- 
cate their property, and liberate their slaves. 
Their slaves are uaiural-born citizens, and the 
country has the right ti their services. 

Pass your law liberating the 4,000,000 slaves 
held by the rebels, and thereby break every un- 
just yoke in that rebel region ; and let the op- 
pressed CO tree, in oliediiuce to that conimatid 
which coniei to us as a voice out of heaven, 
"'Proclaim I berty throughout all the land, to all 
the inhabitants thereof." Do you say tb's i'J 
fanaticism? Dj you say (iod whs a fanatic [ 
when he commanded it, and that the fathers of 
the Uepublic were fanatics when they adopted it i 
as the sign under which they should conquer, l 
and burucd it with fire into the very bell whose ' 



iron tongue summoned them i the e tern work 
of resistance ? 

Hut do you say we have not the constitution- 
al power to enact such a law? Why not? Be- 
cause, you 8ny, the slave is the rebel'.s property. 
I cannot admit that; but, conceding it for iho 
moment, has he not forfeited his property, as 
well as his life, to the Government? Have you 
not by your law authorized the taking of his life, 
both by the sword and the gallows? Is his 
right to his slave, which came by wrong, more 
sacred than his right to his life, which is the gilt 
of (Jod? Hi\3 the rebel special righn and im- 
munities of property in his slave which you do 
not acco d to the loyal citizen? Are you not 
about to assert your jiower to take the properly 
of the true and loyal citizen by taxation, to iho 
extent needed for the put.lic defence? Do you 
stop with a law demanding the property of tbo ' 
loyal citizen? Do you nil demand his life aa 
well, and the life of the fir?t-!'orn of his house? 
Why. sir, the loyal citizen has no right or im- 
munity which must not yield to the paramount 
claims and wants of au imperiled country. Even 
his houfe and home, the most sacred possession 
of man on this side of the grave, must, by the 
very terms of yoiir Constitution, be yielded up 
lor the commim deleiico ; 

" No RoUllcr shiill In time of i>oiu-o be qnarloroA In any 
lioiinK witlimit llio oD.-i'iil of iis owner ; nnr In lime of war, 
lini 111 ;i in.iiiiHT to be i)re.<)crilio<l by law."---3, AmemlmetiU 

to thr Cinifiiliitiim. 

You may thus in war exercisp a power which, 
in time of peace, > ven under the constitution of 
monarchy, is denied 'o the sceptre and the throne. 
The words of the great commoner of England 
will live forever. 

" Tlip poorest man tnny In his cottnfro'hid dctianon Xn all 
<li.' [KiwiTs of ilii- frown. It mi\y bo frail, ilA roof may 
f<link<', th<' wmil ni.iy blow IbrouKli it. (In- stoim may i-nlcr, 
the r;iin may enter, but tlio kiOK <li«ro not entrr --alt liia 
r<iri:c'i> dare' not ciu8S Iho Uirc«ho|(l of Iho ruined tonc- 

llUlll." 

By your law this inviolable s'lnctily of the 
hearthstone, whence comes the nation's strength, 
may be swept away, and yet you cannot confis- 
cate the property or liberate the slaves of rebels 
in arms. Believe it not, sir, though one rose from 
the de«d to proclaim it. 

Against any legislation to this end, it has been 
urged that the power of confiscation and eman- 
cipation is a war power, and, ther' fore, to bo 
exercised only by the Kxecutive as Commander- 
in-Chief, or by those under him in the military 
service. I admit that it is a war power ; but I 
havo already shown that the Constitution has 
invented the wir power in Congress, and the 
power to pass all laws needful to its execution. 
The speech of the venerable John Quincy Adams 
has been cited as against the power of Congress 
so to legislate. The speech was not fully cited 
or considered. Instead of making any su^h de- 
claration he declari's the (contra -y. th.it, i^ time of 
insurrection or piibli- w.ir, 'he (tower to emanci- 
pate the slaves ot rebels '■■"""•- "> :bw Huuso 
und the Smate." 

I have heard it inlii-aicd i w tn • i'esident 
doubts tbis power. There is no room for such 
intimation, inasmuch as the power, to a limited 
extent, was exercised by Congress at its recent 
session, by a statute which gave liberty to all 





slaves employed by tlieir ^maptsrs' conTent in aid 
of this releliion, and confiscated all propepty 
of rebel-j used by its owner's consent in aid of 
the rebellion, and -which statute the President 
approved. The Presi lent, loyal to the require- 
ments of the Constitution and the laws, tells us 
in hi« message to this sesiion that he has con- 
formed bis official conduct to this statute of 
Congress; and that "if a new law upon the 
Bamevubjcct shall be proposed, its propriety will 
be duly conside'red." 

Sir, if such a law be passed it is said it will 
not be effective. Why not elFectivo? Can you 
not enjoin upoh the commanding officer of your 
army the execution of a general law of confisca- 
cation and liberation, in the s me mauner thai 
by the Jaw of 180G the duty is now enjoined 
upon him to secure for the public use the public 
'BtoreB of the enemy taken in bis camps, forts, 
magazines, and towns, and for the neglect of 
which such commanding otficer shall be an- 
swerable? (Fifty-eighth Article of War.) 

But it is said such a law will no^, as to the 
rebels' slaves, be effective. Why not? Is it be- 
cause the knowledge of the fact cannot reach 
these s-aves? Pa-s your law simply decla-ing 
them freemen, and that they shall, if they fly to 
your standard, receive the protection of your 
army, and the joyful news will in ten days reach 
every slave in the Republic, by means of that hu- 
man telegraph whose living network overlies 
fevery slave plantation, and is woven of the lace- 
rated heart-strings of the victims of this infernal 
atrocity. Will not your Jaw be effective if passed 
and communicated to the slave? Why not? Is 
it because he prefers slavery to freedom — the 
bondage of death to the glorious liberty of the 
sons of God? No, sir, there is no slave in this 
land, not reft' of his reason by the providence of 
God or by the torture of oppression, who would 
not hail your statute of deliverance as the very 
gift of life. Though he is a slave he is still a 
man ; and however ignorant and debased, how- 
ever closely imprisoned in that thick darkness 
which may be felt, and which only falls upon 
those from wh m tyranny shuts out the light, his 
hope for liberty as his right is not and cannot be 
extinguished, for it is alliei to his hopf of im- 
mortality, and is bound up with the elements of 
his soul, which cannot, but by annihila ing, die. 

Pass your law, proclaim it at the he >,d of your 

army, execute it summarily by allowing these 

unwilling supporters of the reb Uion to escape 

from their masters through your lines, and receive 

your protection in return for their loyalty ; and 

these children of oppression will make such an 

exodus from the house of their bondHge as the 

world has not seen since that exodus of God's 

pec4)le which the dark-eyed daughters of Israel 

celebrated in that sublime song: 

" Tlio Lmil liath Iriumplmd gloriously ; the horso and his 
rider liathTio Uirowu iulo tiic sea. 

Pass this law, require its faithful execution by 
3'our army, and tlieTebellion must cease, or its 
authors, its aiders, and abettors perish for bread. 
Do this, and crown yourselves with the immortal 
honor of giving liberty to one portion of our 
people and the serene blessings of peace to an- 

SCAMIIELL & CC). , Trinlers, corner of Second slroot & Indiana 

LIBRftRY OF CONGRESS 



other. It is said that upon such statute of libe- 
ration, and by reason of its enactment, these 
slaves will ri^e in insurrection. To say this is 
to libel human nature in its lowest estate. 
Gratitude is inseparable from the human heart 
in every condition of life, in eve^y zone of the^ 
earth's surface. To shiver tlie fetters which 
bind in cruel bondage the souh of men will not 
exci e in them hatred or anger or revenge, but 
will attuue thflr hearts to the sweet melody of 
virtue, and inspire them with hymns of thanks- 
giving to their delivercs. 

Sir, if, after your enactment of this stattlte of 
liberation, the slave? of these rebel masters rise 
in insurrection, it will not be because by your 
law they are declared freemen, but because their 
traitor masters, in defiance of your law, continue 
to deny them their liberty. A slave insurrection, 
however much to be deplored, w uld neither 
weaken your arms nor strengthen those of your 
rebel enemy. Whoever urges, therefore, such 
objection to this needful and just, legislation, 
must, whether conscious of it or not, assume 
that rebels who, wi'.hout colorable excuse, wp.ge 
a cruel and exterminating war against their fel- 
low-citizens, should not be deprived by the 
Government, against which they have revolted, 
of the means by which they may make their re- , 
bellion a success, and without wtiich they must* 
ignonliniously fail. ,. 

Pass this just and beneficent law as aa a(' 
of justice to the slave; pass it as an act c 
justice to your country; pass it ag an act ov 
justice to your brave army of loyal citizen sol-' 
diers who stand this hour between you and 
the armed terrors of treason ia the capital; 
pass it and crush this slave rebellion at once, 
and thereby make a like rebellion for a like 
object forever impossible in the Republic. I 
put the question to Representatives: is the al- 
leged property of these rebels in four million 
of slaves, and in their lands and crops, goods, 
moneys, and chattels, more sacred than the lives 
of your soldiers and the life of your country ? 
Mar God hide from my eyes and from the eyes 
of my children the day when the dying agony 
of my country shall begin!* By no act of ours, 
either of omi-sion or commission, may we con- 
tribute to that direst and blackest crime which 
can be committed by any people — the crime of 
national suicide. Who does not know that he 
who has the power fo prevent the crime' of. 
self-destruction and withholds or refuses its ex- 
ercise, and thereby permits the deed, is himself 
a murderer? . Why, I ask, in the name of eter- 
nal justice, should the people's treasure be ex- 
pended at the rate of $2,000,000 a day, and the 
people themselves be mangled and maimed and 
murdered by these rebels, rather than end the 
sacrifice of treasure and of blood by a sublime 
act of justice which will give liberty to the slave, 
relief to the people, stability to the Constitution, 
peace to a distracted country, and make the 
Republic what its illustrious foundprs intended 
it to be, a temple for the "perpetual residence 
of an inviolable justice," a refuge for the op- 
pressed, and a sacred sanctuary for the rights 
of mankind. 



aveuuo, ITiird Floor. 



011 933 377 

\ 





011 933 377 5 







